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To promote stable, constructive labor-management relations through the resolution and prevention of labor disputes in a manner that gives full effect to the collective-bargaining rights of employees, unions, and agencies.

22 FLRA No. 19
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1760
Union
and
SOCIAL SECURITY ADMINISTRATION,
NORTHEASTERN PROGRAM SERVICE CENTER
Activity
Case No. 0-AR-933
DECISION
I. STATEMENT OF THE CASE
This matter is before the Authority on exceptions to the award of
Arbitrator Howard M. Golob filed by the Agency under section 7122(a) of
the Federal Service Labor-Management Relations Statute and part 2425 of
the Authority's Rules and Regulations.
II. BACKGROUND AND ARBITRATOR'S AWARD
The parties submitted to arbitration the issue of whether the
suspension of the grievant for 10 workdays was for just cause. The
arbitrator determined that the activity failed to comply with a specific
requirement of the parties' collective bargaining agreement by failing
to place all records relied on for the suspension in the grievant's
personnel file. For that reason he determined that the suspension was
not for just cause. The arbitrator directed the suspension be rescinded
and the grievant be reimbursed for all losses caused by the suspension.
III. FIRST EXCEPTION
A. Contentions
In its first exception the Agency contends that the award is contrary
to 5 U.S.C. section 7503(a). /1/ Specifically, the Agency argues that
the award is deficient because the arbitrator failed to make the
finding, alleged by the Agency to be required by section 7503, that the
violation of the agreement constituted "harmful error" and because the
arbitrator applied a standard of "just cause" rather than the statutory
standard of section 7503(a) of "such cause as will promote the
efficiency of the service."
B. Analysis and Conclusions
The Authority concludes that this exception provides no basis for
finding the award deficient under the Statute. Contrary to the argument
of the Agency, the harmful-error rule as it pertains to disciplinary
actions applies only to the more serious adverse actions enumerated in
section 7512 /2/ that are taken under section 7513; the rule does not
apply to the actions enumerated in section 7502 that are taken under
section 7503. See 5 U.S.C. sections 7701(a), (c)(2)(A), 7121(e)(2);
National Treasury Employees Union and Internal Revenue Service, 17 FLRA
1058 (1985). Thus, the arbitrator was not required by section 7503(a)
to find that the violation of the parties' agreement by the Activity
constituted harmful error, and his failure to do so accordingly provides
no basis for finding the award contrary to law as alleged by the Agency.
We turn next to the Agency's contention that the award is contrary to
section 7503(a) because the arbitrator applied a standard of "just
cause" rather than the statutory standard of "such cause as will promote
the efficienicy of the service" in reaching his decision on this
grievance. At the outset it should be noted that section 7503(a) and
section 7513 prescribe that a disciplinary or adverse action may be
taken "only for such cause as will promote the efficiency of the
service." Further, an implementing regulation provides that an agency
may only suspend an employee for such cause as will promote the
efficiency of the service. 5 C.F.R. section 752.202(a) (1985). The
parties in this case had negotiated a provision in their collective
bargaining agreement that provided:
Article 23
Disciplinary and Adverse Actions Section 1 - Statement of
Purpose and Policy
The parties agree that the objective of discipline is to
correct and improve employee behavior so as to promote the
efficiency of the service. The parties agree to the concept of
progressive discipline designed primarily to correct and improve
employees. Bargaining unit employees will be subject of
disciplinary or adverse action only for just cause.
Moreover, the arbitrator stated that the "parties agree that the
following questions, as proposed by the (arbitrator) are to be answered:
Was the suspension of John Murphy on June 4 through June 15,
1984 for just cause? If not, what shall the remedy be?
The question for our determination is whether the arbitrator's
application of the negotiated standard of "just cause" in the
circumstances of this case was contrary to the statutory and regulatory
requirement that an agency may only suspend an employee for such cause
as will promote the efficiency of the service.
The Agency argues that because the arbitrator applied the "just
cause" standard to which the Agency had previously agreed, both in its
collective bargaining agreement and in the issue submitted to
arbitration, the award is fatally flawed and must be set aside. The
Agency contends that the award is so flawed because the arbitrator may
not set aside the suspension absent a specific finding that it "did not
promote the efficiency of the service."
We reject this argument. When the parties agreed to Article 23,
Section 1, they incorporated the language of the statutory standard into
their agreement. The phrase "just cause" which also appears in that
same provision, and as interpreted and applied by the arbitrator herein,
constituted the parties' capsulation of that statutory standard. Thus,
the Authority concludes that when the arbitrator expressly found a
violation of a mandatory procedural requirement of the parties'
collective bargaining agreement the Activity in arriving at its decision
to suspend the grievant, and as a result, rescinded the suspension as
not for just cause, this effectively constituted an affirmative finding
by the arbitrator that the grievant's suspension was not for such cause
as will promote the efficiency of the service.
IV. SECOND EXCEPTION
A. Contentions
In its second exception the Agency contends that the award of backpay
to the grievant is contrary to the Back Pay Act, 5 U.S.C. section 5596.
Specifically, the Agency argues that there is no clear and unambiguous
finding by the arbitrator that the unjustified or unwarranted personnel
action by the Activity of violating the provision of the collective
bargaining agreement relating to records in the grievant's personnel
file directly resulted in the grievant's loss of pay, allowances, or
differentials. Thus, the Agency argues that the backpay is not
authorized because it is not established, as required by the Back Pay
Act, that but for the violation of the agreement, the grievant would not
have been suspended.
B. Analysis and Conclusions
The Authority concludes that this exception fails to establish that
the award is deficient, as alleged. With respect to the Back Pay Act,
the Authority has uniformly stated that in order for an award of backpay
to be authorized by the Act, the arbitrator must find that an agency
personnel action with respect to the grievant was unjustified or
unwarranted, that such unjustified or unwarranted personnel action
directly resulted in the withdrawal or reduction of the grievant's pay,
allowances, or differentials, and that but for such action, the grievant
otherwise would not have suffered such withdrawal or reduction of pay,
allowances, or differentials. E.g., U.S. Army Aberdeen Proving Ground
and Local 2424, International Association of Machinists and Aerospace
Workers, AFL-CIO, 19 FLRA No. 35 (1985). However, because the Agency
has misapprehended the personnel action in dispute, no basis is provided
for finding the award contrary to the Back Pay Act. The issue submitted
to arbitration was whether the suspension of the grievant was for just
cause as required by the parties' collective bargaining agreement. As
his award, the arbitrator expressly determined that the suspension was
not for just cause, expressly ordered the suspension rescinded, and
expressly directed that the grievant be reimbursed for all losses caused
by the suspension. Thus, the personnel action in dispute as pertaining
to the arbitrator's award of backpay was the Activity's suspension of
the grievant for 10 workdays. With the arbitrator expressly determining
that the suspension was not for just cause as required by the agreement,
the personnel action of the grievant's suspension was rendered an
unjustified or unwarranted personnel action within the meaning of the
Back Pay Act. See Robinson v. Department of the Army, MSPB Docket No.
SF07528310135 (June 12, 1984). With the arbitrator directing that the
grievant be reimbursed for all losses caused by the unwarranted
suspension, this effectively constitutes the finding, required by the
Back Pay Act and the decisions of the Authority, that but for the
unwarranted suspension, the grievant would not have suffered a
withdrawal or reduction of his pay allowances, or differentials.
National Labor Relations Board Union, Local 19 and Office of the General
Counsel, National Labor Relations Board, 7 FLRA 21, 26 (1981).
V. DECISION
Accordingly, for these reasons, the Agency's exceptions are denied.
Issued, Washington, D.C., June 18, 1986.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
(1) Section 7503(a) pertinently provides:
Under regulations prescribed by the Office of Personnel
Management, an employee may be suspended for 14 days or less for
such cause as will promote the efficiency of the service . . . .
(2) 5 U.S.C. section 7512 applies to a removal, a suspension for more
than 14 days, a reduction-in-grade, a reduction-in-pay, and a furlough
of 30 days or less.